Historically, prosecuting pirates provided credible and tangible evidence of the sovereign’s authority and the rule of law to their subjects, allies and enemies. Unfortunately, the challenges of actually catching pirates and holding them to account for their actions meant the vast majority of pirates never saw the inside of a courtroom.
Since Somalis hijacked ships outside of the jurisdiction of their own and any other state (i.e. on the high seas), their actions fell under international law and into the jurisdiction of the United Nations.
Prosecution of Somali pirates was a cornerstone of the UN’s piracy suppression strategy. However, similar to the use of naval intervention, the UN had no authority to undertake prosecution itself. In addition, despite the presence of courts in Somaliland and Puntland, the UN’s desire to ensure prosecutions met international standards meant it did not consider these entities to be suitable to prosecute.
Suspected pirates being transferred to Seychelles for trial
This meant responsibility for prosecuting captured Somalis for piracy fell to member states of the UN and they showed little enthusiasm for the task. As it had in the past, prosecution became a problematic tool in piracy suppression that undermined its effectiveness for several reasons.
Reason #1: the need to use universal jurisdiction
As a crime under international law, piracy can be prosecuted by any state if they use a legal concept called universal jurisdiction. However, before the Somali piracy epidemic, very few courts had any contemporary experience invoking it and no state had prosecuted piracy with it.
Many states, including China and the United States actively avoided invoking universal jurisdiction in their own courts. The reason for this was succinctly articulated by renowned piracy scholar Alfred Rubin: ‘[It is assumed] that we are prepared to have our people tried for the same things that we say others violate international law by doing. It has never, never happened except in victor’s justice courts. Never-I repeat, never.’
Reason #2: the need for existing domestic piracy laws
Piracy may be a crime under international law, but it required state law to prosecute it. Until the Somali piracy epidemic, states had little reason to update piracy laws. When the UN authorised naval intervention for the detention and prosecution of pirates in December 2008, governments had not established or updated their piracy laws. Some did not even specifically criminalise piracy: relying instead on general categories of crime, such as robbery, assault, kidnapping, or murder. This meant that if a state's navy captured pirates, the state did not have sufficient laws to prosecute.
Reason #3: Definitions of piracy within state laws needed to match international law
Very few state laws provided for universal jurisdiction over piracy. Even if they did, the definition of piracy within the state law needed to match the definition provided by UNCLOS. In the United States for example, the most recent legal precedent was set in 1820 and defined piracy as ‘robbery at sea’ while the international definition was ‘any illegal acts of violence or detention’. This discrepancy caused the American judge to dismiss a piracy charge against the attackers of the USS Ashland in May 2010. The decision was later overturned on appeal.
Reason #4: the considerable cost of prosecutions
The expense of trials proved considerable and costs were entirely borne by taxpayers. They included everything from interpreting services to defence attorneys. The sole German prosecution cost an estimated €230,000, prompting one commentator to describe the trial as ‘an expensive and pointless farce.’ Moreover, the situation in Somalia was so insecure that convicted pirates could legitimately qualify for asylum.
Reason #5: no guarantee prosecution would stop piracy
The Europeans tended to prosecute for actual hijack and ransom events, while the Kenyan and Seychellois courts prosecuted cases of attempted hijacks. In the first instance, with all of these pre-existing complexities in play, there was no guarantee of conviction. Secondly, the vast majority of internationally prosecuted pirates were not in the upper echelons of pirate networks anyway. Their low-level status meant their prosecutions had little impact on the continuing operation of Somali piracy so would do little to suppress it. Most of the organisers and investors stayed safely at home and did not take to the seas to hijack the ships.
Reason #6: Other challenges
These included differing standards of evidence and investigation; language and communication issues; witness location and retention (for the defence and the prosecution); prolonged incarceration of suspects; potential human rights violations; and funding of legal defences and representation to ensure due process.
Despite all these complications, a variety of countries undertook prosecution of Somali pirates (see the table below). Most got around the need to use universal jurisdiction by only prosecuting when there was a nexus with their state’s interests. In these situations, the state could invoke its own jurisdiction over the pirates. This could include if:
the pirates attacked a ship owned by citizens of the state,
the pirates attacked a ship registered to the state, or
the hostages were citizens of the state.
Table showing all countries that undertook prosecution of Somali pirates (as at October 2017)
NB: This table only includes prosecutions with public information available
The most notable aspect of this Table is the number of prosecutions undertaken by states who were not actively involved in the UN’s naval intervention. This is because the challenges of prosecution meant before long, naval powers sought to avoid prosecution entirely. They undertook two strategies:
entering transfer agreements with Kenya, the Seychelles, Mauritius, and Tanzania to oblige them to prosecute pirates in return for considerable financial investment; and
catching pirates, confiscating their weapons and equipment, and releasing them back to Somalia.
Of the four countries targeted for prosecution responsibilities, only Kenya and the Seychelles undertook multiple prosecutions. Both countries approached prosecutions very differently.
In Kenya, the transfer agreements immediately provoked criticism from within the government. Internal dissent to the agreement caused it to be abruptly severed in mid-2010 and never reinstated, despite considerable international pressure.
Trials for those alleged pirates already in Kenya proceeded at a glacial pace and suffered from multiple delays. Complications included: disagreement over which court had jurisdiction to prosecute, insufficient provisions for prosecuting accused pirates within a hastily constructed legislative instrument called the Merchant Shipping Act, and accusations of ‘judicial activism’ by one prominent Judge.
Eventually, Kenyan courts worked their way through the cases and completed their last prosecution in 2016.
Somali men on trial for piracy in Kenya.
Most were prosecuted together for the same incident.
The Seychelles took an entirely different route. Before signing agreements and accepting transferred pirates, they worked with the UN to ensure their legislative instruments could prosecute effectively. Throughout its 16 prosecutions, Seychellois courts established universal jurisdiction over accused pirates, developed case law on attempted piracy, and showed a willingness to prosecute for cruising without violence. However, convicted pirates complained they had no defence counsel, translator or a right to appeal.
In return for the prosecutions, the Seychellois Government received funds to refurbish their aging courthouse and prison and reputation as a responsible and reliable member of the international community.
A Somali man being taken to his trial in Seychelles
Did prosecution work?
Most Somali pirates convicted in Europe, Kenya and Seychelles served relatively lenient sentences (up to seven years) with education and health care opportunities not available in their own country. At the completion of their sentences, the prosecuting state repatriated the former prisoner back to Somalia. Only the Americans gave long sentences (30 years) for hijack attempts, with life sentences only occurring if death had occurred. With no international assistance, Yemen proved a prolific prosecutor and handed down the only death penalties, in a piracy case that included the murder of two crewmembers. Most sentences for Yemeni prosecutions were for 10 years.
A UN Office of Drugs and Crime survey of prisoners found that most prisoners had more fear of running out of fuel than capture by international navies. Prisoners who knew someone who had left piracy cited family and community pressure as the prime deterrent. Perhaps the only real deterrent prosecution offered to pirates was the prisoner’s isolation from his family, especially those serving long sentences overseas. Ultimately, the months taken to move through the prosecution process to a suitable international standard had little impact on Somalis taking to the seas to hijack ships.